With many African households reportedly still consulting traditional healers to “diagnose” witchcraft and lift curses, a genuine belief in witchcraft remains a reality in our society. And since this sincere belief in some instances unfortunately also leads persons to commit crimes in order to protect themselves or others against occult powers, it is certainly also part of our legal landscape. Yet dealing with belief in witchcraft from a criminal-law perspective is no easy task: on the one hand, the Constitution of the Republic of South Africa compels the state to protect its citizens against all forms of violence, whether public or private, while on the other hand that very Constitution also guarantees every person’s right not to be discriminated against based on religion, conscience or belief.
In light of the recent admission by the South African Law Reform Commission, the position with regard to belief in witchcraft remains uncertain. In an effort to provide greater clarity, this contribution examines the approach to criminal matters involving a belief in witchcraft in South Africa to date. This is done within the parameters of relevant case law, literature, and the provisions of the current Witchcraft Suppression Act 3 of 1957, as well as the prescripts of the Law Reform Commission’s proposed Prohibition of Harmful Practices Associated with Witchcraft Beliefs Bill. The study centres on the potential for utilising the existing, established defences of criminal incapacity and putative self-defence, as well as examining the extenuating effect of belief in witchcraft where sentencing is concerned.
With regard to the defence of criminal incapacity, case law seems to point to a fair degree of hesitation in our courts to equate superstition, or belief in witchcraft in particular, to mental illness. Of course, should such a view be adopted, it would also bring discredit on a large portion of the South African population. In addition, any proposal for those with a sincere belief in witchcraft to be institutionalised and subjected to reorientation programmes would also be a flat contradiction of the constitutionally entrenched right to freedom of religion, belief and opinion. There is merit in Burchell’s proposal that the subjective factors to be considered as part of the test for criminal capacity should include belief or superstition. After all, without necessarily equating belief in witchcraft to mental illness, it could very well affect one’s notion of the unlawfulness of your own actions and your ability to act in accordance with such notion. However, until a solid body of case law has been established in which a sincere belief in witchcraft has been allowed as a defence that eliminates criminal capacity, this approach may struggle to take root.
On the other hand, raising putative self-defence as a justification for criminal actions that stemmed from a genuine belief in witchcraft seems a much more plausible option. Particularly when assessed against the requirements for succeeding with putative self-defence, this defence could possibly be the proverbial straw to clutch at for those whose violent behaviour was spurred on by a deep-rooted fear of occult powers: (i) A person with a genuine belief in witchcraft and occult violence may in given circumstances believe that they are protecting themselves or others against an unlawful attack. (ii) In addition, it goes without saying that a threat of occult violence may be deemed an immediate danger by such a person. Since occult violence is profoundly mysterious and unpredictable, those with a deep-seated belief in witchcraft live in constant fear and trepidation of supernatural forces striking at any given moment. (iii) In all instances discussed in the article, the accused’s actions against the witch or sorcerer were also an intentional attempt to protect a statutorily entrenched interest of either own bodily integrity or community safety. (iv) Finally, in terms of the necessity of the actions it is important to keep in mind that the alternative routes to obtain protection from occult violence are few and far between. The Witchcraft Suppression Act renders it an offence to identify someone as a witch or sorcerer, and mere reporting to the police may therefore constitute a crime. The same act also criminalises assistance previously provided by diviners. The South African Law Reform Commission’s proposed new legislation does not seem to create any viable alternatives either. Therefore, depending on the facts of the matter, a person with this belief can easily form the perception that his/her conduct is indeed necessary. The framework of putative self-defence may thus be a surprisingly good fit for a case involving belief in witchcraft.
Moving on to the extenuating effect of belief in witchcraft at sentencing stage, it seems that despite the courts’ hesitance to acknowledge such a belief as a defence, they have in most instances been willing to consider it in determining an appropriate sentence. At the same time, however, it has been pointed out that too much leniency in sentencing may hamper the prevention of witchery-related crime. Over the years, the courts have therefore established concrete guidelines in terms of which belief in witchery could be considered as extenuating circumstances: (i) Where belief in witchery culminates in the homicide of the witch or sorcerer, and this is accompanied by unnecessary cruelty, belief in witchcraft should not serve as extenuation. (ii) Where it is believed that the witch or sorcerer caused the death of a close family member, and the subsequent actions are aimed at that particular witch or sorcerer, this should be considered as extenuating circumstances. (iii) Where a witchdoctor was consulted, the belief in witchcraft should be deemed more credible, in which case one may assume that it would be more readily considered as an extenuating factor. Of late, however, the heavy sentences imposed despite the role of belief in witchcraft seem to indicate an increased reluctance by the courts to attach any significance to such a belief, even in deciding on an appropriate sentence. This is further supported by section 51 of the Criminal Law Amendment Act 105 of 1997, which has since been altered to extend the list of offences punishable by compulsory life imprisonment to include cases where “the death of the victim resulted from, or is directly related to, any offence contemplated in section 1(a) to (e) of the Witchcraft Suppression Act 3 of 1957”. If belief in witchcraft were to lose its extenuating effect also, this would imply that the South African criminal justice system does not accommodate such a belief in any way, shape or form, which seems somewhat careless and ill-considered in an African context, where belief in witchcraft shows no sign of disappearing in the foreseeable future.
Keywords: belief in witchcraft; criminal incapacity; criminal-law defence; extenuating circumstances; putative self-defence
Lees die volledige artikel in Afrikaans: Geloof in heksery – ’n grondige verweer in die strafhof, of ’n gegoël met die reg?